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27lh GoNCxRESs, [ SENATE. ] [ 152 ] 

2d Session. 



IN SENATE OF THE UNITED STATES. 



March 2, 1842. 
Ordered to be printed. 



Mr. Phelps submitted the following 

REPORT: 

The Committee on Reeolutionary Claims to ichom icas referred the memo- 
rial of the heir of Prancis Le Baroji Goodwiyi^ a surgeori's TJiate^ in the 
army of the Revolution, praying the alloicance of commutation pay. report : 
That the memorialist presents to the committee, in support of his claims, 
the following evidence, viz: I. The affidavit of John Marston, who states 
that " hi the year 1779, the subscriber was employed in the service of the 
Government of Massachusetts, as secretary and aid of Gen, Lovell, who 
was commander-in-chief of the expedition against Penobscot, and took pas- 
sage in the United States ship Warren, then lying in Boston harbor. I then 
found Doctor Francis Le Baron Goodwin as surgeon's mate on board said 
ship, where I left him when we landed to make an attack on the British 
troops. On our retreat through the wilderness from Penobscot to the Ken- 
nebec, I then saw him returning home after the destruction of our fleet.'' 
This testimony does not show upon what establishment Doctor Good- 
win served, whether on the continental or State establishment in the mili- 
tia, or as attached to the ship. It is, therefore, deficient in not showing 
him to belong to the continental establishment, which only was entitled to 
commutation. For atight that appears, too, his service may have been 
temporary merely, and confined to that expedition. At all events, it does 
not appear that he was in service in January, 1781, when the half-pay 
was granted, nor that he continued to serve during the war, both of which 
were necessary to entitle him to commutation. Indeed, from the testimony 
which follows, it would seem that the appointment of Doctor Goodwin 
was neither upon the continental establishment nor a permanent one. 

2. Doctor Thatcher certifies as follows : '• In the year 1781, while I sus- 
tained the office of surgeon to the 9th Massachusetts regiment, commanded 
by Col. Henry Jackson, Doctor Francis Le Baron Goodwin was appoint- 
ed nsy mate in the said regiment, and that he continued in the service to 
the termination of the war." 

3 Mr. Hagner certifies that he is not able to find the name of Francis 
L. B. Goodwin as a surgeon's mate on the revolutionary records on file in 
his office, but among the final settlement-certificates issued to the Massa- 
chusetts line, he finds the name of Francis Goodwin, who, he supposes, 
was a surgeon's mate in that line, and who, he has no doubt, is the same 
person whose name appears on the book of officers in the Bounty Land Of- 
fice, as F. L. B. Goodwin. From the certificate issued in the name of 
Francis Goodwin, he thinks he must have served to the close or very near 
Thomas Allen, print. 



[152] • 4 

Whether, therefore, they are to be deemed mihtary officers or not, they 
were not officers commissioned by Congress, and, therefore, were not within 
the resolution of May, 1778. 

The case of the surgeons was the same. They were not appointed by 
Congress until October, 1780, more than two years after the adoption of the 
resolution we are considering. The committee, therefore, are of opinion 
that neither hospital surgeons nor their mates were entitled to half-pay un- 
der it. 

The case of regimental surgeons and mates will now be considered. 

And the first remark which the committee have to make is that those offi- 
cers were of a grade inferior to that of hospital surgeons and mates. By the 
resolution of July 17, 1776, it is provided "that hospital surgeons and mates 
shall take rank of regimental surgeons and mates," The pay of the hospital 
surgeon, as fixed by the resolution of September, 1780, was $;120 per month, 
that of the regimental surgeon ,^65, that of the hospital surgeon's mate $50, 
and that of the regimental surgeon's mate $45. It is not to be supposed that 
Congress intended to provide for the inferior officer, and neglect the superior 
officer in the same department. Yet such is the result of this new construc- 
tion of the resolution of May, 1778. This distinction, attempted to be made 
between these two classes of officers, is founded upon the fact which is as- 
.sumed, that Congress appointed the regimental surge'ons and mates. That 
they did this, in some instances, must be admitted; but the half-pay was not 
given to all oflicers appointed by Congress, but only to military officers coin- 
missiofied by them. 

The term military may be used in two senses. The first and most com- 
prehensive sense includes all who are connected with the military establish- 
ment of the country, in whatever capacity they may act. The second and 
more limited sense denotes that portion of the military establishment whose 
duties are military in their character ; and the term, when used in this sense, 
distinguishes that class of officers from those whose employments are merely 
civil in their nature. All officers of the line are of course military officers 
in the strict sense of the term ; but the staff is divided into the civil and 
military portions of it. The. commissaries of various kinds, the judge ad- 
vocate, the chaplain, and, in the opinion of the committee, the surgeon, be- 
long to the civil staff, v/hile the brigade major, the adjutant, and the quarter- 
master, are of the military staff. We cannot, in strict propriety, call the 
chaplain a military ofiicer, although he is, in one sense, a part of the milita- 
ry establishment. It is apparent that, in the resolution of May, 1778, the 
"word is used by Congress in its strict and limited sense. This is obvious 
from many considerations : in the first place, the term, if understood in its most 
extensive sense, is unmeaning and imimportant. The resolution, on the 
face of it, relates to the army, and that alone. It could have, if the word 
were omitted, no reference to anything else. The introduction of it, there- 
fore, if it be so understood, could have neither purpose nor effect; yet it must 
be admitted that the phrase, "military officers, commissioned by Congress," 
was introduced as restrictive, because, without it, the resolution, in all its 
provisions, was inapplicable to any other than those connected with the 
army. But in legislating for the officers of the army. Congress used the re- 
strictive terms evidently as dislinguishing between different classes of those 
officers; and in order to give them any effect, we must understand the terms 
in that sense. That 'this was the intention of Congress, is abundantly shown, 
by their cotemporaneous action, which will presently be adverted to. 



5 [ 152 J 

This interpretation most clearly excludes the surgeon as well as the other 
officers of tlie medical department. He is a non-combatant, and his duties 
are {Airely civil. It has been asked, with an air of triumph, if the surgeon 
be not a militaiy officer, whtxt is he? The answer is easily given: he is a 
part of the civil staff of the army, and stands upon the same footing with 
the judge advocate, the chaplain, the paymasters, and the various commis- 
saries of the revolutionary army, none of whom were ever considered as 
entitled to either half-pay or comnuitation under the general designation of 
military officers. Indeed, the absolute exclusion of all these officers from 
the half-pay under the general resolutions of Congress, shows the sense of 
that body that the term military was used in its restricted sense. 

But the other part of the qualification equally excludes the surgeon: 
he is not a commissioned officer. The term commissioned seems to 
have been understood as synonymous with appointed. Here it is ar- 
gded, that, as Congress appointed regimental surgeons and mates, they 
come within the terms of the resolution. The term connnissioned has, 
in military parlance, a technical signiiication, as designating a certain 
class of officers, and its correct application in a particular case depends, 
not upon the question whether he in fact have a commission in his pocket, 
but upon the class of officers to which he is arranged, and the duties which 
he is called upon to perform. Hence an officer may be entitled to all the 
rights and benefits of a commissioned otiicer, without having ever received a 
commission, in fact, as was the case with a great proportion of the officers 
who served during the late war. 

The term " commissioned," is used as contradistinguishing officers of 
the line, first, from inferior officers, as sergeants and corporals, who are 
a part of the rank and file; and secondly, from staff officers, who do not, 
as mere staff officers, come within the designation. It would be a perversion 
of military language to denominate a chaplain, a judge advocate, or com- 
missary of purchases or of issues, or a military storekeeper, a commissioned 
officer. In this sense the words were unquestionably used in the resolution 
of May, 1778. That resolution was prospective, having reference to a cer- 
tain description of officers, designated by a denomination well understood ; 
and it is not to be supposed that the benefit of it was to depend upon the 
mere fact of receiving a commission. If an officer of the line was appoint- 
ed and served, he was entitled to his half-pay as a commissioned officer, 
whether he ever received a commission or not ; and if a former commission 
had been given to a drum major, it would not have entitled him to it. That 
Congress used the term commissioned officer, in the sense here given to it, is 
abundantly evident, from the rules and articles of war, established in 1775. 
The term officer is used in each of the first twenty articles ; yet the term 
commissioned officer is, for the first time, used in the twentieth, and it is 
here used in a matter applicable only to officers of the line. The next time 
it occurs is in the thirty-first, which relates to the duties of the line only. It 
is again used in the thirty-seventh, which provides for regimental courts, 
martial to be held by "commissioned officers." It is here used to exclude 
the staff. It is used in the fortj'^-seventh relating to " unofficer-like" conduct. 
Other instances are there to be found of a like character, showing that the 
word was used as designating officers of the line. 

The fact that Congress appointed the surgeon or surgeon's mate, is unim- 
portant ; it did not make him a commissioned officer. They appointed 
many staff officers who were never considered entitled to half-pa)^ The 
fact is also relied on, that surgeon's mates, in some instances, actually received 



[ 152 ] 6 

commissions, signed by the President of Congress. One of these is before the 
committee ; but, from its tenor, it may as correctly be termed a warrant as a 
commission. Its termsTare as well adapted to certify the appointment of a 
sergeant as of any other officer. To call it a com.mission, and thus bring 
the officer within the resolutions giving half-pay, would be confounding all 
terms, and violating the settled rules of construction. Besides, we can well 
imagine how these commissions were issued : they were doubdess signed in 
blank, and distributed to be filled up by subordinate officers as occasion re- 
quired. It cannot be admitted that the benefit of the resolution giving half- 
pay was intended to depend upon the discretion of those subordinates, ia 
iilling up and delivering those commissions. 

But there was no law previous to May 1.5, 1778, authorizing the issuing 
of commissions to the officers of the medical department. The Board of 
War were authorized, by resolution of the 17th October, 1777, to fill up all 
military conniiissions signed by the President of Congress; but there was no 
authority to issue them to other than commissioned officers, much less by the 
issuing commissions to warrant officers, to enlarge the operation of the res- 
olution of Congress, in relation to such as were, strictly speaking, commis- 
sioned officers. 

It is very clear, in the opinion of the committee, that the resolution of May 
15, 1778, included in its provisions no staff officer. The military staff, viz: 
the brigade major, adjutant, and quartermaster, were appointed by the com- 
mandants of brigades and regiments ; the paymaster was elected by the offi- 
cers of the regiment. The were all taken from the line of commissioned 
officers, and, of course, not being appointed nor connnissioned by Congress, 
they were not as staff officers within the terms of the resolution. The com- 
missariat was expressly refused this half-pay, by Congress; and the medical 
department, with the exception of the head of it, were excluded, because 
they were not appointed by Congress. The committee cannot believe that; 
it was the intention of that body to include the officer of an inferior grade 
in the medical department, to the exclusion not only of the superior officers 
of that department, but also of the whole staflT. Nor can they be made to 
believe diat if Congress intended, by the term military officers, to include 
officers of the staff, that they would have adopted restrictions and limitations 
which expressly excluded the officers of that class, with the exception of a 
few of inferior grade. They tlrerefore conclude that neither regimental sur- 
geons, nor surgeon's mates, were entitled to half-pay, under the resolution of 
May 15, 1778. That Congress itself understood that resolution to be limited 
to officers of the line, is evident, from a resolution adopted only six days 
afterward, in the case of Colonel F. Johnson, which is as follows : " Where- 
as Colonel Johnson was taken from the line to execute the office of com- 
missary general of prisoners, upon an information given to Congress that his 
health would not permit him to continue in the army, and undergo the 
fatigues of it, and as there is no necessary relation between his office and 
the line, Resolved^ That Colonel Johnson be permitted to hold his rank, but 
no command in the line, nor be entiUed to receive the seven years' half-pay 
lately granted to the military commissioned officers.'''' Here is a direct de- 
cision upon the question, whether staff officers, as such, came within the pro- 
visions. 

After all, it should be remarked that this resolution of May 15, 1778, has 
no necessary connexion with the subject of commutation, as the latter was 
given, not to those entitled to half-pay under the resolution last mentioned, 



7 [ 152 ] 

but to those entitled to half-pay for life, under the resolution of October, 1780, 
but is alluded to here as indicating the policy of Congress in making these 
allowances, and serves to illustrate their views in adopting the subsequent 
resolutions. 

The next resolution bearing upon this subject is that of the 3d October, 
1780. This directed a general reduction ; or, perhaps, more properly speak- 
ing, a consolidation of the army. The provisions however relate only to the 
regiments in service, and are confined solely to the line. No mention is any- 
where made in it of the staff; and the only expression which can by possi- 
bility be extended to staff officers is, " that the States shall select from the 
line of the anny a proper number of officers to command the several regiments, 
them respectively assign, taking notice that no new appointment is to be 
maade of a higher rank than that of a lieutenant colonel commandant." As 
this expression relates to officers who are to " command," it would seem also 
to be confined <o ofllicers of the line ; for a staff" officer has, as such, no com- 
mand, especially those of the civil staff. As this regulation applied to regi- 
ments only, it can have no application, in any view of it, to the hospital and 
medical officers, who constituted a different department. The only persons 
of the medical staff who were ever supposed to come within it are, the regi- 
mental surgeon and mate, who may be said to be a part of the regiment. 

It is perfectly apparent, however, that it was not intended by Congress to 
make any regulation in respect to the staff'; because, as the military staff' of 
the regiment was taken from the line, and appointed by the commandant of 
the regiment, the reduction or consolidation of the line would necessarily 
effect a corresponding arrangement of the military staff. The only remain- 
ing portion of the staff, to wit, the civil portion of it, consisted of the chap- 
lain, the surgeon, and his mate. With respect to the chaplain, the arrange- 
ment was made by virtue of a subsequent resolution, of May 8, 1781 ; and 
as to the surgeon, and mate, it may be remarked that a general anangement 
and reorganization of the medical department took place on the 30th Sep- 
tember, 1780, only three days before the resolutions we are now considering. 
It is apparent, then, that the resolution of October 3, 1780, like that of May, 
1778, had reference only to the officers of the line. 

After directing the manner of the reduction, the resolutions conclude as 
follow : " And whereas, by the foregoing arrangement, many deserving offi- 
cers must become supernumerary, and it is proper that regard be had to them, 
Resolved, That from the time the reform of the army takes place, they be 
entitled to half-pay for seven years," (5cc. Thus the allowance was confined 
to those who were made supernumeraries, and who, by the tenor of the res- 
olutions, were officers of the line only. 

Then followed the resolution of October 21, 1780, which was a modifica- 
tion merely of that of the 3d, both directing a reduction of the anny, to take 
effect on the first of January following. This resolution directs an aug- 
mentation of the regiments, and specifies the officere of which they shall 
consist, and enumerates among them one surgeon and one surgeon's mate. 
After sundry other regulations, it provides that the commander-in-chief, and 
the commanding officer in the southern department, should " direct the offi- 
cers of each State to meet and agree upon the officers for the regiments to be 
raised by their respective States, &c., and make return of those who are to 
remain, which is to be transmitted to Congress, together with the names of 
the officers reduced, who are to be allowed half-pay for life" This is the 
first instance in which half pay for life was allowed. 



[ 152 ] 8 

The above resolution was a mere modification of that of the 3d October, 
and has reference to the same proceeding. It enumerates surgeons and 
mates as a part of the regiment ; but it by no means follows that they came 
within the arrangements contemplated by the concluding part of it. The 
officers who were to meet and arrange the reduction were officers of the line. 
It was so understood at the time ; and when the arrangement was in fact 
made, the staff- officers were not included in it, and for the reason, doubtless, 
that the surgeon and mate — the only officers of that class who could have 
been included — were always considered as belonging to the hospital and 
medical department. Their duties had always been regulated, and provision 
made for them, in the regulations of that department. 

The half-pay for life granted by ihe resolution of the 2Ist, was a substitute 
for the half- pay for seven years allowed by that of the 3d; and the meeting of 
the officers provided for in the last, was merely a mode of carrying into effect 
the requirements of the former. There is no reason to suppose that Congress 
intended to depart from their previous policy on this subject of confining this 
allowance to otficers of the line. And here the argument already applied to 
the resolution of May, 1778, returns upon us. By no construction- can the 
officers of the medical department generally be brought within the resolution. 
If, then, the surgeon of the regiment and his mate are included, this result is 
produced : that the inferior officer is allowed half-pay for life, while the superior 
officers of the same department are excluded. It can hardly be believed 
that Congress intended such a result. 

At all events, hospital surgeon's mates can not be considered as included 
in these resolutions ; and thus the question as to them is disposed of. Yet 
they were of higher grade than the regimental surgeon's mates. So the hos- 
pital surgeon, the director general, directors of departments, the physician 
and surgeon general, the apothecary general, and their assistants, all officers 
of a higher grade, are excluded. The only mode of avoiding this incongru- 
ity, is to consider that Congress intended to carry out the principle upon 
which they had previously acted, of limiting the allowance to officers of the 
line. The enumeration of the regimental surgeon and his mate in the resolu- 
tion of the 21st October, when put in connexion widi the meeting of officers 
to make the arrangement, would seem to favor the claim of the mate to half- 
pay. But after that enumeration, there follovv' certain regulations in relatioij^ 
to the line exclusively, and then immediately follows the resolution, already 
quoted, which directs the meeting of ofiicers ; so that the latter has no neces- 
sary or immediate connexion with the enumeration first given. And on 
comparing the resolution with that of the 3d, to which it is amendatory, it is 
obvious that this mode of selecting the officers was merely a substitute for the 
-selection by the States directed by the resolution of the 3d, which, as already 
shown, had reference to commissioned officers only. But what is perhaps 
more decisive, is the fact that the surgeon and mate were not noticed by the 
board of officers when the arrangement was made, and returns made to 
Congreso under the resolution ; which not only shows the understanding at 
the time, but absolutely cut off these officers from the half-pay, which was 
given only to the officers returned by the board. 

But if there be any doubt arising upon the face of the resolution, the co- 
temporaneous aotion of Congress seems to dispose of it. 

The regimental surgeons and their mates were from the beginning regarded 
as belonging to the hospital department. By the resolution of July 17, 1775, 
they were subjected to the control of the director general of the hospital ; 



9 [ 152 ] 

were required to make returns to him ; account to him for medicines and 
instruments, and return to him such as were not used ; to make returns to 
him of the number of mates and other officers employed by the surgeon ; 
also of the sick and wounded. By the resolution of April 7, 1777, it is made 
the duty of the physician and surgeon general " to superintend the regimental 
surgeon and mates, and to see that they do their duty," &c. And it is fur- 
tlier provided, " that if any regimental surgeon or mate shall be absent from 
his duty, without leave, (fcc, the said surgeon general shall have power to 
lemove such surgeon or mate, and forthwith to appoint another in his stead." 
By the resolution of September 30, 1780, the regimental surgeons and mates 
are placed under the direction and superintendence of the ciiief physician 
and surgeon, an officer of the hospital departuient, and the same power of 
removal is given, in case of absence without leave. By this resolution, also, 
the pay and emoluments of the officers of that department are regulated ; 
and, among others, those of the regimental surgeon and mate. This resolu- 
tion also gave bounty-lands to the medical officers, and to the regimental 
surgeon and mate, by name. 

This resolution shows that the latter officers vrere considered a part of the 
hospital establishment, and were provided for as such. Tlie resolution of 
October 3d was adopted only three days afterv.ard. a:u; that of the 2 1st was 
merely a modification of the former. It can not be supposed to have been 
the intention of Congress to select these two officers as the objects of a sepa- 
rate provision and preference under the latter resolutions, or to inchide them 
in the arrangement of the officers of the line, upon v/hich the half-pay de- 
pended. 

This subject of provision for the officers of the liospital department was 
brought before Congress immediately after the resolutions of October were 
adopted. On the 17th of January, 1781, they adopted the following reso- 
lution : 

" Whereas, by the plan for conducting the hospital department passed in 
Congress on the 30th September last, no proper establishment is provided for 
the officers of the medical staff, after their dismission from pubhc-setvice, 
which, considering the custom of other nations, and the late piuvision for the 
officers of the army after the conclusion of the war, they appear to have a 
just claim to, for remedy whereof, and also for amending several parts of the 
abovementioned plans — 

^'■Resolved, That all officers in the hospital department, and medical staff 
hereinafter mentioned, who shall continue in service to the end of the war, 
or be reduced before that time as supernumeraries, shall be entitled to. and 
receive, during life, in lieu of half-pay, the following allowances, viz :" 

It then proceeds to enumerate the officers, with the allowance to each, 
and in the number mentions the regimental surgeon, but omits t.he mate. 

This is the resolution upon which the officers of that deparmient were en- 
tided to half-pay for life, and, eventually, to comnmtation. It is adverted to 
here for the purpose of showing that they were not included in the resolutions 
of October, 1780. 

It has been urged that this resolution was intended merely to place the 
surgeons, &c., attached to the hospital upon the footing of those auached to 
regiments. But we have already seen that the latter were always treated as 
belonging to the medical staff mentioned in the preamble, and the express 
provision for regimental surgeons shows the opinion of Centres: tha. he had 
not beeci previously provided for. 
2 



[ 152 ] 10 

The resolution of March 23, 1783, which commuted the half-pay for fiv® 
years full pay, manifests the same understandini^ of the subject. It firs^ 
provides for commuting with the officers of the several lines for the half-pay 
provided by the resolutions of October, and with the officers of the hospital 
department for that to which they were entided by that of January 17, 1781. 
The committee are, therefore, of opinion that neither the regimental sur- 
geon nor the mate was entided to half-pay under the resolutions of October, 
1780. The only claim which any medical officer could have was founded 
upon that of January 17, 1781. In this resolution the surgeon's mate is 
omitted, and, therefore, upon the face of the resolution he is not entided to it. 
It has been suggested that this was an accidental omission on the part of 
Congress. If it had been so it would, doubdess, have been supplied, as was 
done with respect to general officers omitted in the resolutions of October. 
The commutation was, from the outset, refused to the surgeon's mates in the 
settleinent made with the army, upon the ground of the omission. And cer- 
tain staff officers applied very early to Congress for commutation, and upon 
an application of that kind. Congress resolved, on the 26th of January, 1784, 
" that half- pay cannot be allowed to any officer, or any class or denomina- 
tion of officers, to whom it has not been heretofore expressly pron>ised. The 
omission was not only known at a very early period, but practised upon; 
and had it been accidental would have been instandy supplied. 

There were very good reasons for the omission. The employment of sur- 
geon's mates in the hospital has already been adverted to. It was not per- 
manent, but occasional as the exigency of the service required ; they were 
paid by the day. Their office was of that nncertain and precarious character 
ihat it did not seem to demand of Congress the allowance of half-pay. They 
were, doubtless, omitted by design. The regimental mate being an inferior 
officer, both in point of rank and pay, it was not only incongruous to give it 
o him, excluding the other, but it might give offence to the mates attached 
to the hospital. 

It has, also, been insisted that the tenn surgeons, as used in the resolution 
of January, 1781, is querical, and includes mates. This position is incon- 
sistent with the whole legislation of Congress. From the beginning they 
have been treated, by all the resolutions of the Continental Congress, as dis- 
tinct classes of officers. In all the regulations of the medical department, not 
an instance can be found in which they have been confounded. In regu- 
lating their pay the mates have not only been distinctly enumerated, but 
paid at an inferior rate. The same is true in relation to the allowance of 
bounty land by the resolution of September, 1780. Nor is this all. In the 
very resolution we are considering, and in the enumeradon of officers pro- 
vided for, the term surgeon is applied to no less than three different classes 
of officers, to wit, the chief physician and surgeon, the hospital surgeon, and 
the regimental surgeon, showing that the term is specific and not general. 

It has, also, been argued that the surgeon's mates had, by virtue of the 

resolutions of Congress of October, 1780, a vested right to the half-pay, 

which could not be divested by the subsequent resolution of January, 1781. 

The answer to this involves a view of the subject which, in the opinion 

of the committee, will remove all difficulty. 

By the resolutions of October, 1780, a reduction of the army was to be 
made, to take effect on the 1st of January following, and half pay was 
granted to two classes of officers; first, those who were thrown out of ser- 



11 [ 152 ] 

who were retained and continued to serve to the end of the war. It is 
very certain that no right rested in either class upon the mere passage of 
the resohition, nor until the reduction was effected. The first class were 
entitled to it upon retiring, and not before; and the second upon the 
performance of the condition, by serving to the end of the war. It is 
equally clear that it was competent for Congress to withdraw the proposi- 
tion before anything was done under it. They might omit the reduction 
altogether, or vary the terms upon which it should take place. When 
the period of reduction arrived, the officer had his election to remaia 
in service or retire, upon the terms ofiered him in either case; and when he 
had made that election, and not before, a right vested absolute in one event 
and contingent in the other. No fraud is committed by withdrawing or vary- 
ing the terms before they w^ere accepted, but he would be considered as 
making his election upon the proposition as it stood when the election was 
made. As a matter of history, it is well known that the reduction was not 
in fact effected nor the selection of ofticers made until February, 1781, la 
Januar}^ of that year. Congress declared their intention in relation to the med- 
ical department, and repudiated the idea that any pojiion of them v,ere pro- 
vided for by the resolutions of October previous. There is no doubt that the 
resolutions of January 17, 1781, had at least this effect. The regimental sur- 
geon was given to understand that instead of his half-pay as surgeon, he was 
to receive only half the pay of a captain, and the mate that he was to receive 
nothing. Now, if we admit for argument's sake that these officers were within 
the terms of the resolutions of October, yet this explanation or variation of 
the terms upon which the reduction was to be made, as it took place before 
the reduction was made or the officer was called on to make his election ef- 
fectually, excluded all claim in behalf of these officers to the half-pay, as first 
tendered. The resolutions of October, as it respects these officers, never took 
effect, and no right vested. If, in short, the resolutions of January, 1781, 
superseded that of October, 17S0, the officer's right is to be measured by the 
former, and it becomes immaterial to inquire what would have been the effect 
of the latter had it gone into operation. 

The conclusion to which the committee have arrived, that no surgeon's 
mate was entided to half-pay or commutation, is in accordance with the con- 
struction uniformly put upoji the several resolutions of tiie Continental Con- 
gress and the practice of the Government, from the earliest period down to a 
very recent time. Recently attempts have been made to alter that construc- 
tion, and a difference of opinion on the subject has prevailed. The commit- 
tee can not find, however, that the claim of a surgeon's mate has ever been 
sanctioned by Congress, except in one instance, that of John Knight, in 1832. 
But, in this case, the committee find no printed report, nor iiave they been 
able to ascertain whether this passed without the attention of Congress being 
drawn to the question, or upon peculiar grounds, such as existed in one or 
two other cases, where commutation was aflowed to a mate acting as surgeon, 
and considered entitled to emoluments as such. But the committee can see 
no propriety in changing a construction of the law whicli has obtained for fifty 
years, and especially of a law of this character. If it were to operate for all 
time to come unless repealed, a regard to its future operation might lead to a 
ne\wconstruction. But these resolutions were of temporary operation. Their 
effect was to give to a class of officers, most if not all of whom are now de- 
ceased, a certain compensation for their services. When this is done the law 
itself is obsolete — a dead letter. To alter the construction of it now, and 



[ 152 ] 12 

ihus revive it, can answer no good purpose to those intended to be benefited 
by it; they are beyond its reach. And the committee can discover neither 
justice nor expediency in creating at this day a new class of claimants upon 
the Treasury in the persons of their heirs or remote representatives, to whom 
the country is under no obligation; nor, indeed, in exciting a spirit of specu- 
lation to traverse the country in search of stale claims, at a period when the 
evidence is wanting to determine their validity, and when recent experience 
has taught us the extreme danger of imposition. 

The committee, therefore, recommend the adoption of the following reso- 
lution : 

Resolved, That the prayer of the petition be denied. 



. TRRORY OF CONGRESS 

MP. 




